Can you copyright a dress design in the US?

The cut, silhouette, and construction of a dress cannot be copyrighted, because a garment is a useful article under 17 U.S.C. 101. A print, pattern, or surface decoration applied to the dress can be copyrighted if it would still work as art separated from the garment, the test the Supreme Court set out in Star Athletica v. Varsity Brands (2017).

What did Star Athletica v. Varsity Brands actually decide?

It decided that the chevrons, stripes, and color-block arrangements printed on Varsity Brands' cheerleading uniforms were copyrightable as surface art, because they could be picked out and reproduced on a different medium and still look like a design. The opinion explicitly did not give Varsity Brands any right to stop competitors from making uniforms of the same shape, cut, or dimensions.

Why can't clothing shapes be copyrighted like a song or a photograph?

Copyright's useful-article rule, codified at 17 U.S.C. 101, withholds protection from any feature of a functional object that cannot be separated from that function. A sleeve exists to cover an arm, a bodice exists to fit a torso, and those functional choices are not the kind of authorship copyright protects, regardless of how original the silhouette looks.

How do fashion brands protect their designs if not with copyright?

Mostly through trademark and trade dress, which protect a name, logo, or other feature that identifies the source of a product to consumers, and through design patents, which protect a specific ornamental design for a limited term but require a separate application and examination for each design. Neither covers a silhouette the way copyright covers a song.

Has Congress ever tried to give fashion designs copyright-style protection?

Yes, repeatedly and unsuccessfully. Bills including the Design Piracy Prohibition Act were introduced in the 109th Congress in 2006, the 110th Congress in 2007, and the 111th Congress in 2009, each proposing a short term of protection for apparel designs, and none passed.

Can you copyright a dress

In the United States, largely no. A dress is what copyright law calls a useful article, and a useful article’s design only earns protection where an artistic feature can be pulled off it and still stand as art on its own. That test has a name, Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405 (2017), and it is narrower than most of what gets written about it. It did not give fashion copyright. It gave surface decoration a way in, while leaving the garment underneath exactly as unprotected as it was the day before the ruling. This is not legal advice, and the underlying facts of any dispute change the analysis.

The statute the whole fight sits on

Copyright protects “pictorial, graphic, and sculptural works,” a category defined at 17 U.S.C. 101. The same section defines a “useful article” as one “having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” A dress covers a body. That is a utilitarian function, so a dress is a useful article by definition, and the statute goes on to say that a useful article’s design counts as a protectable pictorial or sculptural work “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Everything downstream of that sentence, including Star Athletica, is an argument about what “identified separately” and “existing independently” mean when the useful article is a piece of clothing rather than a lamp base or a belt buckle, the objects earlier cases had actually dealt with.

What Varsity Brands actually sued over

Varsity Brands designs cheerleading uniforms and had registered copyrights on several of its surface patterns: arrangements of chevrons, lines, curves, stripes, angles, and color blocks arranged across the bodice and skirt. Star Athletica, a competitor, sold uniforms using similar arrangements, and Varsity Brands sued for infringement. Star Athletica’s defense was that the designs were inseparable from the uniform’s function, since a chevron placed on a cheerleading uniform is doing the job a cheerleading uniform’s decoration does: identifying the wearer as a cheerleader and flattering the shape of the garment. If that argument won, the designs would not be useful-article-separable and Varsity Brands would have no copyright to enforce.

The two-part test the Court set

Justice Thomas, writing for six justices, rejected Star Athletica’s argument and set out a two-part test: a feature of a useful article’s design is eligible for copyright “only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work” on its own, imagined in some other medium, independent of the useful article. Applied to the uniforms, the chevrons and color blocks passed both steps. A person looking at the uniform can perceive the arrangement of lines and shapes as separate from the garment’s shape, and that same arrangement, reproduced on a canvas or a t-shirt or anywhere else, would still look like a design rather than like nothing at all. The Court treated it the way it would treat a fresco painted onto the curved wall of a building: the wall’s shape does not stop the painting from being a painting, and a garment’s shape does not stop a print from being a print.

The correction: this did not protect the dress

The sentence in the opinion that the coverage usually skips is the one that draws the actual line. Justice Thomas wrote that “respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear.” Read that twice. Varsity Brands won its case and still cannot stop a competitor from cutting and sewing the exact same uniform, in the exact same silhouette, provided the competitor leaves the registered chevrons off it. The ruling widely got reported as the Supreme Court finally giving fashion copyright protection. It gave two-dimensional surface art on garments a clearer test for something courts had already been doing case by case since the 1954 ruling in Mazer v. Stein, which first allowed a copyrighted sculpture to keep its copyright after being used as a lamp base. The garment’s shape, its draping, its seams, the seven inches between hem and knee: none of that moved an inch. A dress with an original, beautiful, wholly new silhouette and zero surface printing gets exactly the same copyright protection after Star Athletica as it got before, which is none.

Why Congress keeps saying no

The gap between “you can copyright the print” and “you cannot copyright the cut” is not an accident courts stumbled into. Justice Thomas’s opinion noted that Congress had rejected something close to seventy design-protection bills going back to 1914, and the fashion industry has kept trying since. The Design Piracy Prohibition Act was introduced in the House in 2006 during the 109th Congress, reintroduced as H.R. 2033 and S. 1957 in the 110th Congress in 2007, and reintroduced again as H.R. 2196 in the 111th Congress in 2009, sponsored by Representative William Delahunt of Massachusetts. Each version would have granted a short, sui generis term of protection, typically three years, to the overall appearance of an apparel design. None of them reached a floor vote that mattered. The reasons cited across those debates ranged from the fear of litigation flooding a fast-moving industry to disagreement over how “substantially identical” a copy would have to be before it infringed, and the trade groups on each side never lined up the same way twice. Fashion in the United States has operated for over a century under a rule Europe does not share. The European Union’s unregistered Community design right gives a new garment design automatic, if short, protection the moment it is first disclosed, which is one reason the transatlantic conversation about fast fashion copying runway silhouettes keeps talking past itself: American law was never set up to stop it.

The dissent’s objection, and why it lost

Justice Breyer, joined by Justice Kennedy, argued the majority applied its own test wrong. His point was not that surface art can never be separable from a useful article; it was that these particular designs could not be, because removing the chevrons from the uniform and putting them on a canvas still produces a picture of a cheerleading uniform, not an abstract picture of chevrons. He drew the comparison to Van Gogh: “Van Gogh’s painting of a pair of old shoes, though beautifully executed and copyrightable as a painting, would not qualify for a shoe design copyright.” A painting depicting a uniform, Breyer argued, is a depiction of the uniform first and a design second, and that dependency is exactly what the useful-article doctrine exists to screen out. The majority answered that separability asks whether the feature can be imagined apart from the article, not whether the resulting image still evokes the article once separated, and six justices signed onto that reading against two dissenters, with Justice Ginsburg concurring in the judgment on separate grounds. The disagreement was genuinely close on the law, not a rout, and it is worth knowing that the vote was not unanimous before treating the majority’s separability test as settled beyond argument.

What this means for a garment on a rack

Trademark picks up almost all of the work copyright leaves undone. A brand’s name, its logo, a color combination consumers have learned to associate with one source, all of that is protectable trade dress, and it explains why apparel companies chase counterfeiters over a logo far harder than they chase a competitor who copies a jacket’s cut. Design patents exist too, protecting a specific ornamental design for a term of years, but each one has to be filed and examined individually, which is slow and expensive against an industry that turns a runway look into a store shelf in six weeks. A dress silhouette, however original, sits in the same unprotected space it occupied before 2017. What changed that year was narrower and more useful than the headlines suggested: a print can be somebody’s, even while the dress it is printed on belongs to no one.

We make garments where the printed rose is the part that says something specific, union made in the United States. That print, not the cut underneath it, is what the law in this piece actually reaches.